6 | Opinion
FRIDAY February 27, 2015
Deterring money launderers recent agreement between the Home Ministry’s population and civil registry bureau and Bank Indonesia that requires bank accounts to be supported by an electronic national identity card (eID) would contribute greatly to preventing money laundering. Banks are no longer able to open accounts for citizens who use only old forms of identification (non-electronic), which can easily be falsified and are not effective nationally. Corruptors and other criminals have often used false or fake IDs to open bank accounts that serve as the repository of their ill-gotten money, but since the introduction of biometric-based national identity cards in 2011 it has been rather impossible to produce fake IDs. Since the registration for an eID requires citizens to have their fingerprints, irises and faces captured as images through biometric equipment and their personal information stored as a record associated with each eID, which is effective nationwide, it is extremely difficult for citizens to own two IDs. The eID program was launched with a wide range of purposes, including providing identity for voter registration, passport issuance, tax and financial matters and driving licenses, and so far more than 150 million eIDs have been issued. Many financial and taxation regulations have become less effective because under the old ID-card processing system, people could easily produce fake or false IDs. The compulsory use of eIDs will help banks properly implement Bank Indonesia’s Know-Your-Customer Code to detect money launderers or customers engaged in transactions not in line with their financial profiles. This rule also will be a great help for the Financial Transaction Reports and Analysis Centre (PPATK). The effectiveness of the data stored at Bank Indonesia’s credit bureau also has often been affected by the use of fake IDs whereas this bureau plays an important role in helping banks better manage risks because the bureau contains data on debtors, including borrowers and credit-card holders. The experiences of countries with much more developed financial infrastructure have shown that a reliable credit bureau will help banks and finance companies not only to better score customer risk, but also to reward borrowers with exemplary credit records with incentives. Conversely, debtors considered to be of high risk will be charged with higher interest rates and fees to reflect their risk profile. The bureau’s operations will greatly help improve the management of credit risks as banks and finance companies will be able to share up-to-date information on borrowers’ financial performance. Comprehensive, reliable and upto-date credit profiles or credit history will certainly help banks and finance companies assess the creditworthiness of a borrower or debtor. The credit bureau also receives information not only on loans but also credit and charge cards, overdrafts, revolving lines of credit, motor vehicle loans, margin trade accounts, personal loans and real estate loans. Reliable data on debtor profiles will enable banks to charge their borrowers differently according to their risk profiles, thereby allowing for a graduated risk-pricing system.
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The $60b looting he United Nations-appointed investigators’ findings that former Yemeni president Ali Abdullah Saleh allegedly stockpiled up to US$60 billion in wealth during his 34-year dictatorship was indeed shocking, especially because the country is one of most impoverished Arab nations. It was very interesting to note that the UN Security Council appointed a panel of experts on Yemen to trace Saleh’s fraudulent acts to enrich himself, while a big proportion of the population, still today, remains living below the poverty line. The experts presented their 54-page findings to the council Tuesday. “[Saleh] is alleged to have amassed assets between $32 billion and $60 billion [...] partly from his corrupt practices as president of Yemen, particularly relating to gas and oil contracts [...],” The Jakarta Post reported in its Thursday edition. Saleh’s abusive and corrupt practices explain why poverty, security disturbances, riots and terrorism have been rampant there, despite its significant energy reserves. He has repeatedly denied the allegations. Saleh lost his seat during the 2011 Arab Spring, but his influence and power remained intact to destabilize Yemen, as evidenced by his ability to “orchestrate” the ousting of his successor, Abd-Rabbu Mansour Hadi, by a Shiite rebel group in September last year. The UN panel directly pointed its finger at Saleh for his role in forcing Hadi’s resignation. The next question for many people, especially those in developing countries, and even more so for those who once endured or are still living under corrupt governments, is whether the mechanism for Yemen is applicable to their current or former leaders? Was it easy for the UN to launch an investigation into the former dictator because Yemen is relatively small and his crimes did not involve giant corporations? Will the UN dare to act against leaders of bigger and richer countries? For Indonesians, Saleh’s alleged corruption and power abuse remind them of Soeharto, who ruled the country for 32 years until his fall in May 1998. A US magazine reported that Soeharto and his family were suspected of amassing billions of dollars to enrich themselves. Until his death in 2008, the courts failed to bring him to justice, let alone convict him, because of his poor health. We only hope that the UN-sanctioned investigation into Saleh’s alleged acts of corruption will set a precedent and standard procedure to help countries that want their leaders or elite to return their ill-gotten wealth to their peoples. Dictatorship, for sure, tends to corrupt.
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Sharia can only be complementary source for policy in Indonesia
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here is a vehement debate going on in Indonesia on the role of sharia in the state. Some argue secular politics are at the heart of the decline of the state, arguing for implementation of sharia in all aspects of life as the solution. The recent debate is similar to that in the first years after independence since 1945, in the 1950s and in the 1970s. During the first years of independence, secular nationalists and Muslim nationalists were debating about the place of Islam in the state and particularly on the role of sharia (Islamic law). The political Islamists wished to include the following phrase in the Constitution’s preamble: “the obligation to observe sharia for its believers”, a proposition strongly rejected by the secularists. Finally, the Muslim nationalists agreed to remove the well-known “seven words”. In the 1970s, the debate focused not on the Constitution, but on the marriage law. After lengthy debates, and for the first time in Indonesian history, Islamic law became an integral part of the state’s positive law. Moreover, it was the first time in Indonesia that a codification of marriage law applied to all citizens regardless of their ethnicity, origin or religion. In more than one decade, the debate re-emerged with the development of a rigorous textual interpretation by Muslim fundamentalists, who called for sharia in all aspects of life in Indonesia. This demand gained an incredible force with the fall of Soeharto’s New Order regime in 1998, which according to these factions was due to the failure of secular politics marked by corruption and nepotism, leading to the decline of the state. They argued that sharia was the basis of all laws in the old sultanates across the archipelago from the 13th to the 19th century. This is the romanticism referred to in appeals for sharia in various provinces, regencies and munici-
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palities. An example is the Banten province where a “preparation committee of sharia implementation in Banten” was installed recently. The former Banten Sultanate (1526-1813) is presented as an instance of ideal Islamic governance, when the Sultanate applied Islamic law in all aspects of life. But let’s examine that claim — that sharia was the basis of all laws in the era of the sultanates, at least in Banten. Among the primary sources to study Banten history are local sources such as legal manuscripts, the codes that contain information on law, customs, social norms, culture and local philosophy. The Undhang-Undhang Banten (UUB) is such a legal manuscript. It was left behind by the Qadi court of Kiyahi Peqih Najamuddin, the title of the Islamic judge of Banten. The unique manuscript is preserved in the library of Leiden University in the Netherlands. The major part of the text, a total of 227 pages, is in Javanese, with 11 pages in Malay. The manuscript of 162 pages is mainly written in Arabic letters (pegon), while 65 pages are written in Javanese letters. Thus the UUB is a hybrid text, composed of 11 texts bound together as one manuscript. It was copied from the original diverse sources: a 65-page text in Javanese was copied after 1755 and the rest, 162 pages in Arabic, was copied after 1815. Some 80 percent of the UUB comprise customary or adat law. Islamic law deals particularly with marriage (12 articles), inheritance (29 articles), and the takzir (11 articles). Islamic law represents only 15 percent of the UUB or 52 out of 335 articles. The articles citing sharia pertain to marriage, divorce and separation,
and the ritual obligations of prayers and fasting. Regarding Islamic penal law, researchers including myself found only three articles dealing with had (corporal punishment) and qisas (retaliation punishment). Besides, this Islamic penal law was merely an alternative to the customary law at the time. The punishment of qisas was found in the chapter on murder in the Law of Kyai Arya Mangunjaya. It provides: “If the murderer is a slave, and the murdered is also a slave, the murder is sentenced to qisas, death […]” The punishment of had deals with robbery (sariqah), the false accusation of illegal sexual intercourse (qazaf) and adultery (zinã). The article on robbery is found in several places, for example in article 43 of the Law of Sultan Haji “Those who steal the property of Portuguese, British, Dutch, Danish, and French, shall have their hand cut off, if the value is one reyal (or more).” The article on qazaf and zina is found on page 120: “The penalty for the false accusation of unlawful sexual intercourse is 80 lashes. The punishment of adultery is 100 lashes”. Although these three articles deal with Islamic penal law such as had and qisas, the code also provides for the penalty of fines. For example the punishment of qazaf is a fine according to article 5 in the Law of Kyai Arya Mangunjaya: “Anyone accusing a person of adultery that is not proven by judicial investigation, is sentenced to a fine of 15 reyal. If he is a city man, the fine is 30 reyal.” The code therefore marginally incorporated elements of Islamic law in 52 articles. Two chapters on family law and inheritance law are purely based on Islamic law. Some articles borrowed the terms of sharia. Accordingly, our study shows that Islamic law is only one of the sources of the Laws of the Sultanate of Banten and not the major source. Sharia was referred to mainly in family law. At least the vocal
claim that sharia provided a basis of all laws across the sultanates is unfounded in Banten. The case of Banten should serve as a lesson at the national level. Politicians and Islamic parties should avoid using the issue of sharia for their short-term agenda, such as the “Islamization” of their localities through bylaws. These bylaws on morality and behavior fail to touch real problems such as poverty, unemployment and deforestation. Sharia must play a more substantial role and the Risalah Yogyakarta recently issued by the Congress of Indonesian Islam Community reflects this hope. In seven points, the word “sharia” appears twice. First, when it deals with a new approach as an alternative to economic development. Second, when it pertains to national problems such as narcotics and illegal drug abuse, human trafficking, pornography and the abuse of liquor. Obviously, sharia should be a source of morals and ethics for public policy and lawmaking. But sharia would be also encapsulated and complemented by the culture, traditions and values of Indonesian societies, in the nation’s modern legal system and democracy. Therefore, “Indonesian sharia” could be one of the sources of legislation in the world’s largest Muslim country — but not the single source.
Politicians and Islamic parties should avoid using the issue of sharia for their short-term agendas. The writer is the director of the Indonesian Sharia Watch NGO, a lecturer at the Faculty of Sharia and Law, State Islamic University of Jakarta (UIN) and a researcher at PPIM UIN Jakarta.
Discrimination by law in Egypt Rana Allam INTER PRESS SERVICE/CAIRO
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n November 2013, a Thomson Reuters Foundation survey ranked Egypt as the worst of 22 Arab states with regards to women’s rights. Several people argued that any country strictly following Islamic laws should rank lower, because Egypt and many other Arab and Muslim countries are not strict in following Islamic sharia (religious laws), like in cutting off the hand of a thief, for example. However, Egypt — along with most Muslim countries — incorporates a list of laws based on Islamic sharia. Some of these are indisputable sharia laws, while others are based on individual interpretations, and both are indeed discriminatory. Suffice to say that in the second highest ranking Arab state in the survey, Oman, women inherit 50 percent of what men do, a man can divorce his wife for any reason while a woman needs grounds to file for divorce, and there are no laws against female genital mutilation. The starkest examples of sexist laws in Arab and Muslim countries come in the personal status laws. Regardless of whether these laws are Islamic sharia compliant or not, they are presented as such and thus are non-negotiable. With the many interpretations of Islamic text, it falls on the legislators and the (so-called) Muslim scholars to enforce what laws they “understood” from the text. These laws should be revised if we are to enforce gender equality, here are some examples: ● Polygamy is legal for men only. ● A man can divorce his wife with no grounds and without going to court, while a woman has to have strong reasons for divorce, must convince a court of law of some ordeal about her marriage, and the judge may or may not grant her divorce. A
new law introduced in Egypt in 2000, called Khula law where a woman can file for divorce on no grounds, but then she has to forfeit her financial rights and reimburse her husband the dowry (and any gifts) paid when contracting the marriage. ● A woman inherits half what a man inherits. ● In some Muslim countries, like the UAE, a woman’s testimony is half that of a man’s in court. In most Muslim countries, if a contract requires a certain number of witnesses, a woman is counted as “half” a man. ● There is no set minimum age for marriage in Islam, so some countries like Sudan can marry off a 10-yearold girl, and in Bahrain, a 15-yearold, however, in Libya the minimum age is 20. ● A Muslim man can marry a nonMuslim woman, but a Muslim woman is not granted the same right. ● In most Muslim countries, spousal rape is not recognized in the laws. ● Abortion is illegal unless there is risk to the mother’s life and even this has to be with the husband’s consent. It is one thing to fight culture and an intimidating environment and another thing to have sexist laws, where even in a court of law, a woman has no equal rights. For women in Egypt, the general atmosphere is one of hostility and intimidation, prevalent aggressions and complete impunity with regards to violence against women. Amnesty International titled its latest briefing on the subject “Circles of Hell: domestic, public and state violence against women in Egypt.” Women in Egypt must not only fight such culture, but must also deal with discriminatory laws. Muslim men have a unilateral and unconditional right to divorce, while women can only divorce by court action. A man need only say the words “I divorced you” and then register the divorce.
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Actually, an Egyptian Muslim man may not even tell his wife he is divorcing her, he can register the divorce (regardless of her consent or attendance) and it is the duty of the registrar to “inform” her. On top of this, there is such a thing as a “revocable divorce” which means the husband has the right to revoke the divorce at his own accord during the waiting period and without having to sign another marriage contract.
When it comes to adultery, Egyptian laws stray far from Islamic teachings. Such a waiting period is only a woman’s burden. She has to remain unmarried for three months after she gets divorced, and such waiting period is nonexistent for men. Adding insult to injury, Egypt has an “Obedience Law”. This law stipulates that a man may file an obedience complaint against his wife if she leaves the marital home without his permission. The woman is this case has 30 days to file an objection detailing the legal grounds for “her failure to obey”, a judge may not be convinced of course. If she fails to file such objection, and does not return home, she is considered “deviant” and is denied her financial rights upon divorce — if she was ever granted one. Naturally, such proceedings delay her divorce lawsuit, and risk a just financial settlement. Although legislators in Egypt have always cited Islamic sharia when enforcing such strict personal status laws, when it comes to adultery, Egyptian laws stray far from Islamic teachings and are outrageous. The issue is such a taboo that no one even dares mentioning it. In Egypt, if you are a man, you can liter-
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ally kill your wife and get away with it, if you catch her “red-handed” committing adultery. Laws pertaining to the crime of adultery are an embodiment of sexism and discrimination: ● A married woman would be charged with adultery if she commits the crime anywhere and with anyone. A married man would only be accused of adultery if he commits the crime in his marital house; otherwise there is no crime and no punishment. ● The punishment for a married man (who committed the crime in his marital home) is imprisonment for six months, but women are given a sentence of two years in prison (regardless of where the crime took place). ● If a married man commits adultery with a married woman in her marital house, he would merely be an accessory to the crime. ● If both are unmarried, and the female is over 18, he receives no punishment, while she may face charges of prostitution. ● If a married man catches his wife red-handed in the crime, and kills her and her partner, he does not face intentional murder charges or even manslaughter, he only gets a sentence as low as 24 hours. If a wife catches her husband red-handed and kills him, she immediately faces murder charges with its maximum sentence as the judge sees fit. Not only do we have to fight taboos, sexist culture, violence on the streets and at home, gender-bias in every police station, court of law or place of business, but we also have a long way to go to at least have equality in the eyes of the law. The writer is a former editor-in-chief of Daily News, Egypt, and commentator on women’s rights issues.
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